Decided on September 01,1953



Panigrahi, C.J. - (1.) This is an appeal directed against an order passed by the subordinate Judge, Sambalpur under Order 23, Rule 3, C. P. C., refusing to record an adjustment of Title Suit No. 28 of 1950, which is pending on his file.
(2.) The facts giving rise to this litigation are that the plaintiff Chamra Sahu, defendant No. 1 Sundar Sahu, and defendant No. 9 Bhikarycharan Sahu are uterine brothers. It is said that ever since the year 1949 there has been disputes going on between the brothers for a partition of their family properties. Several attempts appear to have been made for an amicable partition of the properties, all of which however failed on account of the intransigence of one party or another. The plaintiff, therefore, filed a suit for partition on 7-7-1950 in the Court of the Subordinate Judge, Sambalpur, against defendant 1 and the members of his branch, defendant 9 and his branch, and impleaded defendants 12 to 16, who are his remote cousins, as their names have been jointly recorded in some of the revenue papers. While the suit was pending and before the written statement was filed defendants 1 and 9 filed a petition under Order 23, Rule 3, Civil P. C. on 3-31951 alleging that the suit had been adjusted out of Court and that the compromise arrived at between the parties should be recorded and the suit disposed of accordingly.
(3.) The admitted facts are that on 28-2-1949 there was an agreement, executed by the brothers Ext. C whereby the properties were roughly divided into five shares of which the plaintiff was given one. This agreement, however, does not purport to be a record of a completed partition of all the properties, but is only a rough memorandum indicating which party will take what share, in some of the properties. It is also admitted that, tinder this agreement Ext. C, the plaintiff was entitled only to one-fifth share in the family properties. However, the agreement was not given effect to, nor were the properties divided in pursuance of the agreement. The plaintiff's complaint is that the defendants wanted to grab a larger share of the income of the joint family properties, and in spite of his protests cultivated more than what should normally fall to their share. This led to the institution of proceedings under Section 145, 'Cr. P. C. During the pendency of these proceedings the parties agreed to have their shares divided through the intervention of arbitrators. But this did not bear any fruit and so the plaintiff filed his suit for partition. It is also common ground that on 21-1-51 the parties again entered into an agreement (Ext. A) under which the allotments made under the earlier agreement (Ext. C) were slightly modified so as to give the plaintiff one-fourth share in some of the joint family properties and the proceedings under Section 145, Cr. P. C., were dropped. At the time of this subsequent agreement (Ext. A) there were two proceedings pending under Section 145, Cr. P. C., in Criminal Case No. 138 of 1950 and Criminal Case No. 161 of 1950. It is the validity of this agreement (Ext. A) that forms the subject-matter of the dispute between the parties.;

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